DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	H. J. Heinz Company Australia Limited v Tagudin [2023] NSWPICPD 82	
		
APPELLANT:	H. J. Heinz Company Australia Limited	
		
RESPONDENT:	Agnes Tagudin	
		
INSURER:	Employers Mutual NSW Limited	
		
FILE NUMBER:	A1-W6979/22	
		
PRESIDENTIAL MEMBER:	President Judge Phillips	
		
DATE OF APPEAL DECISION:	15 December 2023	
		
ORDERS MADE ON APPEAL:	1.	Order 2 is amended to accurately reflect the findings such that it reads as follows by the addition of the word “reasonable”:
“The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent.” 
2.	The Certificate of Determination dated 1 March 2023 is otherwise confirmed.	

CATCHWORDS:	WORKERS COMPENSATION – psychological injury – section 11A of the Workers Compensation Act 1987 – whether action taken by an employer is reasonable with respect to performance appraisal and discipline – Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 and Mani v Secretary, Department of Education [2021] NSWPICPD 3 considered 	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Mr L Robison, counsel	
	HWL Ebsworth Lawyers	
		
	Respondent:	
	Mr G Barter, counsel	
	Law Partners Personal Injury Lawyers	
		
DECISION UNDER APPEAL		
		
MEMBER:	Ms J Toohey	
		
DATE OF Member’s DECISION:	1 March 2023	

INTRODUCTION
1.	The respondent, Ms Agnes Tagudin, was employed by the appellant, H. J. Heinz Company Australia Pty Ltd, as a production operator, commencing that employment in 1996. 
2.	In 2017, the respondent was given two written warnings after two separate incidents of unsatisfactory performance in April and June of that year. 
3.	Nothing further untoward occurred until 26 July 2021. On that date incorrect labels were affixed to sauce bottles which the respondent was held responsible for. After the respondent supplied the appellant with a written report of the incident, a meeting took place on 10 August 2021 where the respondent was issued with a third and final warning. On 13 August 2021, another incident occurred involving incorrect temperature settings being set on a line that was being operated by the respondent. In accordance with established procedure, the respondent was required to provide a written report of the incident. This she did. 
4.	On (or about) 1 September 2021, the respondent was handed a letter inviting her attendance at a meeting to discuss the 13 August incident. The respondent left work having received the letter and has not returned to work for the appellant since that date. 
5.	The respondent says that between the meetings referred to above which took place in 2021, she was “repeatedly” called into the office and interrogated about what had happened and asked for more information. The respondent says that she felt bullied, embarrassed and harassed by this behaviour. 
6.	The respondent made a claim for psychological injury arising from these events. The appellant disputed this claim by notices issued on 10 December 2021 and 30 June 2022. There was no dispute that the respondent suffered a psychological injury or that it was wholly or predominantly caused by her work, namely, performance appraisal and discipline. The dispute was whether for the purposes of s 11A of the Workers Compensation Act 1987 (the 1987 Act), the appellant employer’s conduct was reasonable.
7.	The matter was heard before Member Toohey on 31 January 2023, with the Member issuing a decision in favour of the respondent worker on 1 March 2023, finding that the employer’s conduct, namely, calling her into repeated meetings, was unreasonable. It is from this decision that the appellant appeals.
ON THE PAPERS
8.	Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 	If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
9.	Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’, and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
10.	There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE EVIDENCE
11.	The primary issue on appeal is in respect of the Member’s finding that it was unreasonable for the employer to call the respondent into several meetings for questioning over the incidents. Perusal of the evidence regarding these alleged meetings reveals as follows.
12.	In an initial statement dated 29 October 2021, the respondent says she had given her managers information about both incidents and had taken accountability for them, but it seemed they were not happy and “kept asking for repeat meetings”, so she found herself “telling them the exact same thing I wrote on [the] incident report, weeks after”. She described feeling singled out as other operators who had made mistakes in the past did not experience this treatment. Being repeatedly paged into the office and questioned for information was “exhausting”. She said she felt as though she was being “interrogated for a murder case”. The respondent said she did not know why management continued to request these meetings and began to experience anxiety. She says that she informed her manager of this who did not acknowledge it. 
13.	A statement from Mr Mark Zahra, the respondent’s manager, also dated 29 October 2021, does not specifically address these repeated “interrogations” as alleged by the respondent, other than to say that “food manufacture is a very regulated industry … The actions of [the respondent] did not only cause significant financial loss to the company but also could have had serious health implications to the general public. It is the responsibility of management to investigate all aspects of food safety and I make no apology for conducting investigations that ensure our products are safe for the public to consume. On saying that I believe [the respondent] was treated fairly and all considerations were afforded to her when making enquiries on these issues.” He refers to the respondent’s history of mistakes in 2017. He says that it was his belief that the respondent’s psychological injury came about as a result of being issued with a third and final warning.
14.	In a statement dated 14 September 2022, the respondent denies Mr Zahra’s assertion that it was the warning that caused her injury, rather the “process of accusation, investigation, and disciplinary action was unreasonable and excessively drawn out and cumulatively wore on my mental health”. She says that Mr Zahra’s comments regarding the issues in 2017 were unfair as the company had a “policy of clearing incidents from our personal record after one year has lapsed.” The respondent largely repeats the circumstances in 2021 as described in her initial statement. She says that despite providing an incident report outlining what had occurred on 26 July 2021, “management continued to pressure me into providing more information, though I told them multiple times that everything was written in the incident report. They would not accept my version of events ...”. She says the same interrogation occurred after she prepared an incident report for the issue on 13 August 2021. She says she “had already given them all the information and taken accountability for the two incidents, but they continued to call me in for meetings, intimidating me every two to three days”. The respondent says she “felt like a broken record telling them the exact same thing on the incident reports.” She felt “belittled and ashamed” and began to experience panic attacks when paged into the office. The respondent again confirms that her managers were aware of this, but they did not address it. She says this amounted to harassment and that she developed a psychological injury as a result. 
15.	A statement from Ms Kiara Novak, former Human Resources Business Partner, obtained on 10 November 2021 indicates that she was involved in the performance and disciplinary action regarding the incidents in 2021. After learning of the respondent’s mental state from another employee, she says the respondent was called into a meeting and Ms Novak expressed “general concern for her wellbeing”. The respondent was invited to take time off. Upon returning to work, the appellant provided the respondent with the final letter notifying her to attend a meeting to discuss the 13 August 2021 incident. The respondent did not attend this meeting and Ms Novak says they were informed the respondent was in hospital complaining of chest pain. Similarly to Mr Zahra, Ms Novak’s statement does not specifically address the respondent’s allegation that she was repeatedly called into meetings for questioning over both incidents. 
16.	Dr Darios Adriano is the respondent’s general practitioner. In a clinical note dated 9 September 2021, Dr Adriano records “on going generalised anxiety and depression … had some issues at work … noted 2x mistakes at work… has been there for 25 years … however being called repeatedly in the office … affecting her mental health …”. Dr Adriano referred the respondent to a psychiatrist, Dr Manambrakkat, on 21 September 2021.
17.	Dr Susheel Manambrakkat, consultant psychiatrist, provided a report to Dr Adriano on 11 November 2021. In this report, Dr Manambrakkat noted that despite apologising for her mistakes, the respondent was “subsequently summoned every second day for an explanation by Mark Zara [sic] and the management. … every time she is called for an explanation, she gets extremely anxious and worried. She trembles, feels scared and feels overwhelmed.”
18.	The version of events described by the respondent is repeated in the history recorded by Dr Abdal Khan, consultant psychiatrist retained by the respondent’s legal representative, in a medico-legal report of 24 April 2022. The respondent “reported how she continued to be called into meetings with management every two to three days … how she would experience anxiety and panic attacks when she was about to attend these meetings. … As a result of these aforementioned work-related stressors, [the respondent] experienced deterioration in her mental state …”. Dr Khan reported that the respondent “continued to feel [targeted] by the actions of her employer whereby she was repeatedly called into meetings with management. These actions from her employer caused her to feel bullied, harassed, unsupported, ignored and dismissed and led to her developing the psychiatric/psychological condition …”. 
19.	Dr Scott Clark, consultant psychiatrist, reported a history in a medico-legal report of 30 November 2021 that the respondent’s “manager kept asking to see her every second day and she was unclear why this was … after the second incident at work, she was under so much pressure that she could not cope. She said she was embarrassed that she was continually called into the office and that other workers could see this.” Dr Clark opines that “the incidents occurring in 2021 can be considered the whole or predominant cause of the psychiatric condition”. 
THE MEMBER’S REASONS
20.	The Member acknowledged that there was no dispute that the respondent sustained a psychological injury, or that it was wholly or predominantly caused by the appellant’s actions with respect to “performance appraisal” or “discipline”. 
21.	The only issue for determination was whether the appellant’s action with respect to performance appraisal or discipline was reasonable. It was not relevant whether the appellant had complained of bullying and harassment during the course of her employment from 2017 to 2021, nor was it relevant to determine whether such conduct occurred or could amount to such behaviour.
22.	The Member referred to the relevant lines of authority in Irwin v Director General of School Education, Northern NSW Local Health Network v Heggie and Department of Education and Training v Sinclair to assess the test for reasonableness, being a broad one which requires one to weigh up all factors (Irwin), is objective (Heggie) and reviews the entire process (Sinclair). 
23.	It was the respondent’s case that the appellant had placed weight on earlier errors in 2017, and doing so was unreasonable. The Member was not persuaded that it was. 
24.	Noting the line of authority in Sinclair that a review of the “entire process” would include the circumstances surrounding the action both before and after, for the purposes of assessing reasonableness, the Member did not think this extended to the incidents in 2017, even if they played a part in how the appellant dealt with what happened in 2021. The respondent acknowledged the mistakes she made in 2017 and did not complain about how they were dealt with. 
25.	The Member thus turned to the history of events in 2021 which spanned between 26 July 2021 to 1 September 2021. These events were not in dispute, namely, the first incident occurring on 26 July 2021, the respondent being asked to provide a report on 27 July 2021, and a meeting taking place and a letter being issued by the appellant on 10 August 2021 determining the incident would attract disciplinary action. There was the further incident on 13 August 2021, followed by the respondent supplying a statement on 19 August 2021, and an invitation by letter to a meeting on 1 September 2021. The Member says that the respondent does not complain about the letters; rather, she complains about the actions taken by the appellant in between those meetings which rendered an otherwise reasonable process, unreasonable. 
26.	The Member referred to the respondent’s evidence of being repeatedly asked by her manager, Mr Zahra, to attend meetings and being paged to the office and asked for information during that time. The Member said this history was confirmed in the medical evidence as affecting her mental health, and there was “no real challenge” in respect of the evidence in this regard. It was the appellant’s submission that the evidence was “unclear” about managers calling in the respondent, but also that it was incumbent on the employer to take action and monitor the respondent to ensure errors were not repeated, given the nature of the food manufacturing business and consequences for consumers. 
27.	Although the Member accepted the critical importance of food safety and the action required from such employers to address any errors, she found there to be minimal evidence to refute the respondent’s claim that she was repeatedly called into meetings and questioned. It did not matter whether the respondent believed it to be harassment. There was no evidence to explain the purpose of these requests from management, even if it was in fact for the purpose of monitoring or supervising her. The Member did not think the statement evidence provided by Mr Zahra addressed the respondent’s claims with any specificity. The Member therefore accepted the respondent’s evidence that she continued to be called for explanations, even after providing her statement about what had occurred and receiving a formal warning letter. 
28.	The Member held that this action described formed part of the formal performance appraisal/disciplinary process and played a significant part in causing the respondent’s psychological condition. The Member was not satisfied, on the evidence, that this action was reasonable, nor was she persuaded by the appellant that it had discharged its onus of establishing that it was reasonable action.
29.	In the absence of a challenge regarding capacity and there being agreement regarding pre-injury average weekly earnings, the Member ordered weekly compensation and medical expenses. The Certificate of Determination issued on 1 March 2023 records:
“The Commission determines:
1. 	The applicant sustained a psychological injury arising out of or in the course of her employment with the respondent (deemed date of injury 22 September 2021).
2. 	The applicant’s psychological injury was not wholly or predominantly caused by action taken by the respondent in respect of her employment.
3. 	The applicant has had no current capacity for employment from 22 December 2021 as a result of her injury as claimed in the Application to Resolve a Dispute.
4. 	The respondent to pay the applicant weekly compensation as claimed pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act).
5. 	Parties have liberty to apply with respect to the calculation of the applicant’s entitlement to weekly payments, noting that the amount claimed in the Application to Resolve a Dispute is an indexed figure.
6. 	The respondent to pay the applicant’s reasonable medical expenses pursuant to s 60 of the 1987 Act.”
GROUNDS OF APPEAL
30.	The appellant advances four grounds of appeal. They are:
Ground One – The Member erred in law by failing to provide the appellant procedural fairness in determining a matter which was not in dispute, namely that the “the [respondent] suffered injury arising out of or in the course of her employment with the [appellant]; there is no dispute that the injury was wholly or predominantly caused by action taken in respect of performance appraisal/discipline”. 
Ground Two – The Member erred in law by taking into account an irrelevant consideration, namely the matter referred to in Ground One above.
Ground Three – The Member erred in law by misdirecting herself as to the test of reasonableness for the purposes of s 11A of the 1987 Act. 
Ground Four – The Member erred in fact by finding that the appellant had not acted reasonably. 
LEGISLATION 
31.	Section 11A(1) of the 1987 Act provides:
“11A 	No compensation for psychological injury caused by reasonable actions of employer
(1) 	No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
DISCUSSION 
Principles on appeal
32.	Intervention on appeal is dependent upon the appellant establishing that the Member’s decision is attended upon by error of fact, law or discretion. The seminal treatise on how this power is to be exercised is found in Raulston v Toll Pty Limited. In practice, this means that factual findings made by a member at first instance stand unless they can be shown to be wrong. Findings of fact will not be disturbed on appeal if they have rational support in the evidence.
As to Grounds One and Two
33.	Given that these two grounds have been advanced in an interrelated manner, it is convenient to deal with them both together. 
34.	“Injury”, it was agreed by the parties, had been wholly or predominantly caused by performance appraisal or discipline in the course of the respondent’s employment with the appellant. The appellant submits that the reasonableness of its actions, with respect to performance appraisal or discipline, was the only matter in contest. This being the case, the appellant says there was no need for the Member to address causation.
35.	The appellant points to the Member’s finding at reasons [129] where the Member said the following:
“I find that what occurred between 26 July 2021 and around 1 September 2021 formed part of the performance appraisal/discipline process overall and that it played a significant part in causing Ms Tagudin anxiety and distress.” 
36.	The appellant complains that in relation to this finding, it had been denied procedural fairness. The appellant says that on this issue it had no opportunity to tender evidence, call witnesses or make submissions. The appellant says it should have been invited to make submissions on these matters before they were resolved in a manner adverse to its interests. 
37.	With respect to Ground Two, the appellant submits that the Member, having decided a matter that had been agreed by the parties, took into account irrelevant considerations in her decision-making process. The appellant refers to the passages commencing at reasons [36] and following. 
38.	In reply, the respondent counters by stating the following:
“It is difficult to see how a determination in accordance with a matter that is not in dispute could give rise to a denial of procedural fairness however, from the submissions in support of Ground 1, the Respondent Worker assumes the Appellant Employer claims a denial of procedural fairness on the basis that the Appellant was surprised by an issue of causation it was not expecting to meet.” 
39.	The respondent further submits that it was necessary for the Member “to identify the relevant ‘actions taken’ in order to determine whether or not those actions were reasonable”. In response to Ground Two, the respondent argues that it is accepted that the Member had to identify the relevant actions taken; this cannot be said to be an irrelevant matter. 
Consideration 
40.	At the outset of considering these two grounds of appeal, it is necessary to briefly state the obligation of practitioners appearing before the Commission. They are “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.
41.	This is precisely what the parties did when it was agreed that the injury was caused by the appellant’s actions with respect to performance appraisal or discipline. This meant that the ‘real issue’, being the reasonableness of those actions, was the matter requiring determination in terms of s 11A of the 1987 Act. This acknowledgment between the parties was completely appropriate and was in line with the Commission’s statutory mandate.
42.	However the appellant says that this having been agreed, causation was not open to be visited by the Member and as a result the appellant was denied procedural fairness. This, it is also said, was the Member taking into account an irrelevant consideration. For the reasons set out below, these submissions cannot be accepted. 
43.	Firstly, under s 11A of the 1987 Act, the Member is obliged to examine the entire process to gauge reasonableness. It was necessary, in particular, for the Member to examine the respondent’s assertions that between the formal performance appraisal or discipline meetings, she was repeatedly called back into the office to be further interrogated about her actions. This involved not only an examination of the lay evidence for both parties but also the complaints about this conduct recorded by the medical practitioners. This inquiry necessarily covered the same evidentiary ground that the admission of injury related to. It would be highly artificial to expect the Member, when performing her task of examining all the circumstances (such as they were) to assess the reasonableness of the appellant’s actions, to then eschew considering any of the facts that went to injury. To the contrary of the assertion in Ground Two, this was in fact a very relevant exercise and involved the Member in no error of approach.
44.	Secondly, the appellant says it was denied procedural fairness in the manner that I have set out above. This submission can only be made good if the denial affected the outcome. In this matter, that injury had been caused wholly or predominantly by the actions of the employer with respect to performance appraisal or discipline was an agreed position between the parties. With respect to the issue of injury, if this is the issue that this complaint relates to, clearly the asserted denial of procedural fairness could not have affected the result on that discrete issue.
45.	The events between 26 July 2021 and 1 September 2021, as referenced at reasons [129], were always the crux of the dispute in this matter. I cannot see how the appellant was inhibited in any way from dealing with the evidence relating to that period in a way that could create a procedural fairness issue. The appellant addressed the Member about the assertions of repeated interrogations. The respondent referred to the histories given to Drs Khan and Cooke (sic, Clark) as being supportive of her statement, which was not responded to. This submission was made by the respondent directly on the question of the reasonableness of the employer’s action. No objection was taken to the reference to the medical evidence being used with respect to the separate question of the reasonableness of the employer’s actions. A lack of procedural fairness has not been proven. 
46.	Neither ground has been established.
47.	Grounds One and Two are both dismissed. 
As to Grounds Three and Four 
48.	The essence of Ground Three is the appellant’s complaint that the Member has misconstrued the test of ‘reasonableness’ under s 11A, instead imposing a higher burden upon the appellant’s conduct. The appellant says that the Member applied too much scrutiny to the appellant’s conduct. The test, the appellant says, does not require perfection. The appellant relies upon how reasonableness was discussed in Irwin and Heggie. 
49.	The appellant ends its submission in the following terms:
“To conclude on this ground, the Member essentially found that there was a lack of reasonableness because there was too much scrutiny on a worker who had committed several food safety breaches. That reflects too onerous a standard on the appellant.” 
50.	In terms of Ground Four, the appellant complains that at reasons [125] the Member found “that there was ‘almost no evidence to counter [Ms] Tagudin’s claim that she was called repeatedly to meetings through July-August 2021 to explain the purpose.’ In making this finding, the Member erred factually by not taking into account (or not giving weight to) the important evidence given by Ms Novak in her statement dated 10 November 2021.” The appellant then refers to the statement, and in particular to paragraph [11], where Ms Novak refers to her “recollection” of the conversations she was involved in. 
51.	The appellant then submits that in evaluating reasonableness, the positions of the parties need to be considered. Food safety was very important to the appellant, hence the requirement for scrutiny given this important purpose. The appellant says that “[e]ven if [the respondent] was scrutinised too frequently as she alleges this would still be reasonable given the need to protect stakeholders in the form of consumers of Heinz products.” 
52.	In reply, the respondent states that the Member correctly referred to the authorities on the question of reasonableness, namely Sinclair, Irwin, Heggie and Mani v Secretary, Department of Education, which collectively direct that the “entire process” be examined. This the Member did, submits the respondent.
53.	With respect to Ground Four, the respondent says that the appellant is “unable to identify a fact found by the Member that was wrong or not available to her on the evidence.”
Consideration 
54.	There is no argument or dispute between the parties as to the applicable law and authorities on the question of the ‘reasonableness’ of the employer’s actions. 
55.	The contest with respect to what was ‘reasonable’ sits within the following factual circumstances. There was no dispute that the formal performance or disciplinary meetings in 2021 were conducted reasonably as a process. The matter that was in issue was the appellant repeatedly calling upon the respondent to explain or answer questions about her actions between the formal meetings. The Member dealt with this as follows:
“124. 	The only evidence submitted by the [appellant] about the high degree of regulation imposed on the food manufacturing industry and the potential consequences of errors for its business is in Mr Zahra’s statement dated 18 November 2022. However, no challenge is made to that evidence or to Mr Robison’s submissions, and I accept it is a matter of common knowledge that safety in the food manufacturing industry is of critical importance. I accept that an employer such as the [appellant] has to take action when errors occur.
125. 	The difficulty with the submission is that the [appellant] has provided almost no evidence to counter Ms Tagudin’s claim that she was called repeatedly to meetings throughout July and August 2021 or to explain their purpose. If it was for the purpose of closely monitoring and supervising her performance as Mr Robison submits, there is no evidence to that effect. 
126. 	Mr Zahra provided a statement dated 18 November 2022 in response to Ms Tagudin’s statements. He had to be aware that she was claiming that being asked to explain her actions repeatedly was causing her psychological symptoms. He stated that, to his knowledge, she was ‘only interviewed once by management’. He really has not addressed her claims with any specificity, he has not disputed her claims, and his statement is difficult to reconcile with the submission that she was being closely monitored and supervised during this period because of her declining performance and repeated errors.
127. 	For the reasons submitted by Mr Robison, I place no weight on Mr Beggs’ statement. 
128. 	In the absence of any better evidence from the [appellant] to the contrary, I accept Ms Tagudin’s claim that she continued to be asked for explanations of what occurred in July 2021 and August 2021 after she had provided a statement about what had occurred and after she had been given a formal warning about the incident on 26 July 2021. Whether she believed the incidents had been dealt with is not to the point. Other than Mr Zahra’s statement that, to his knowledge she was only interviewed once by management, the [appellant] has not countered her claims or provided any explanation as to why it was necessary to call her in for questioning repeatedly as she claims. 
129. 	I find that what occurred between 26 July 2021 and around 1 September 2021 formed part of the performance appraisal/discipline process overall and that it played a significant part in causing Ms Tagudin anxiety and distress. I am not satisfied, on the evidence, that it was reasonable action.”
56.	Clearly, the Member accepted the appellant’s submission about the “critical importance” of food safety in the appellant’s industry. But this acceptance was not the end of the matter. Rather, consistent with authority, the Member had to examine the entirety of the process when assessing ‘reasonableness’. This the Member did. From the passages I have extracted above, the Member carefully reviewed the evidence about the whole process before accepting the respondent’s evidence about the repeated interrogations. 
57.	A review of the evidence reveals that the finding ultimately made by the Member at reasons [125], as supplemented by reasons [128], was a finding available to the Member without error. 
58.	The respondent provided a statement dated 14 September 2022, which I have described earlier in this decision, in respect of being repeatedly called into meetings by management. In this statement the respondent also describes her knowledge of the incident review process. Pausing here, this description of the incident review process reflects Ms Novak’s description of that process. Ms Novak is described as the appellant’s Human Resource Business Partner (at the relevant time) and as a result, presumably would have intimate knowledge of the process. I would merely note that neither witness’s description of the process includes any reference to any further process involving the “repeated interrogations” complained of by the respondent. 
59.	Mr Zahra, the appellant’s Manufacturing Manager provided two statements which I have also described above, and did not, in terms, rebut the assertion of the repeated meetings that the respondent said she was directed to attend. 
60.	The findings made by the Member at reasons [125] and [128] were, in light of the nature of the evidence relied upon by the appellant, appropriately made and qualified. At reasons [125] the qualifier was that the appellant “has provided almost no evidence to counter Ms Tagudin’s claim that she was called repeatedly to meetings …” (emphasis added). This statement is an accurate reflection of the evidence. It is of no help to the appellant in its duty to show how the Member was wrong in this view by relying on Ms Novak’s statement. Ms Novak’s statement at paragraph [11] is appropriately qualified as being made “to her recollection”. It is not a definitive refutation of the respondent’s evidence. More telling is Mr Zahra’s failure to deal with the claims made by the respondent in either of his statements about the repeated meetings. 
61.	The appellant has failed to show how the Member was wrong in coming to the factual assessment of the evidence at reasons [125]. Where the Member says that the appellant “has provided almost no evidence” in that section of the reasons, this is an accurate statement of the state of the evidence. The evidence relied on by the appellant on this issue  is either inconclusive (Novak) or absent ( Zahra). 
62.	I do not accept the appellant’s assertion that the Member applied a standard which imposed a counsel of perfection upon the appellant’s process. The formal process outlined by Ms Novak and confirmed by the respondent was not subject to any criticism. The issue clearly was with the “process” of repeated interrogation, which took place outside the parameters of the formal process that the Human Resource Business Partner, Ms Novak, described. Cleary, on the evidence, this process which took place outside what was contemplated by the parties as being the known process was very distressing to the respondent. The Member found that Mr Zahra “had to be aware that she was claiming that being asked to explain her actions repeatedly was causing her psychological symptoms.” This finding substantiated the ultimate finding at reasons [129] that the process between 26 July and 1 September 2021 was not reasonable. 
63.	This was balanced against the appellant’s need for food safety, which the Member referred to and accepted. As Deputy President Snell said in Mani:
“The employer carries the burden of proof on the issue of whether its action was ‘reasonable’. The test is objective. It is insufficient that the employer believed in good faith that its actions were reasonable, or that it was compelled to act as it did.” 
64.	It is apparent that the appellant believed that its duty to guarantee food safety was paramount and its actions in pursuit of this aim were thus reasonable. This does not answer the respondent’s claims about the process. It is insufficient for the appellant to believe that it was “compelled to act as it did” and this is the effect of what the Member found. There is no error in this process. 
65.	The appellant, as is required by Raulston, has failed to identify error on the Member’s part in either ground. Neither ground has been made out. 
66.	Grounds Three and Four are dismissed.
DECISION
67.	The Member at reasons [129] finds that the employer’s action was not reasonable, which is the ratio of the decision and which has been subject to challenge in this appeal. There appears to be an obvious error in the drafting of Order 2 of the Certificate of Determination which does not accurately reflect this finding. Order 2 neglects to reflect the finding that the employer’s action was not reasonable. This obvious error is amenable to correction so as to ensure that this dispute is not complicated by this circumstance, consistent with the Commission’s statutory mandate and the Commission’s procedure found in s 43 of the 2020 Act. 
68.	Order 2 is amended to accurately reflect the findings I refer to above, such that it reads as follows by the addition of the word “reasonable”:
“The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent in respect of her employment.” 
69.	Otherwise the Certificate of Determination dated 1 March 2023 is confirmed. 

Judge Phillips
President
15 December 2023